Ryder v. Ryerson University Students Union, 2012 HRTO 173

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Ryder Applicant

-and-

Ryerson University Students Union, Continuing Education Student’s Association of Ryerson, Palin Foundation, Ryerson Student Centre/Student Campus Centre and Joel Duff Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: January 23, 2012

Citation: 2012 HRTO 173

Indexed as: Ryder v. Ryerson University Students Union

WRITTEN SUBMISSIONS

Donna Ryder, Applicant ) Self-represented

Ryerson University Students Union, ) Michael S. Richards, Counsel Continuing Education Student’s ) Association of Ryerson, Palin ) Foundation, Ryerson Student ) Centre/Student Campus ) Centre and Joel Duff, Respondents )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 26, 2010, which alleges discrimination with respect to services, goods and facilities and employment on the basis of disability, age, association and reprisal.

2The application alleges a variety of discriminatory acts by the respondents when she was an employee of the Ryerson Student Union (“RSU”) and on occasions when she sought to participate in events organized by the organizational respondents. The Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on November 12, 2010 because the allegations regarding several named respondents appeared to be outside the Tribunal’s jurisdiction and because the Application in some respects did not raise an issue the Tribunal could resolve. The applicant filed submissions replying to the NOID on December 15, 2010. In an Interim Decision, 2011 HRTO 202, the Tribunal dismissed the Application against one organizational respondent and 11 individual respondents.

3The purpose of this Interim Decision is to deal with several preliminary and procedural issues raised by the parties. For the reasons that follow, I will also direct a one-day preliminary hearing in person so that the parties may provide their oral submissions on some of the issues raised. On March 9, 2011, each of the remaining parties filed a Response. In addition to denying any violation of the Code, the respondents made several preliminary and procedural submissions, as follows:

• Each of the respondents submitted that the majority of the allegations set out in the Application are untimely, pursuant to section 34(1) of the Code;

• Each individual respondent submitted that the Tribunal should remove him or her as a respondent;

• The individual respondents, Denise Hammond (“Hammond”) and Toby Whitfield (“Whitfield”) submit that the substance of the Application is part of a current action before the Ontario Superior Court of Justice; therefore, the Tribunal should dismiss or defer the Application;

• The individual respondents, Hammond and Whitfield submit that the substance of the Application has been dealt with in separate proceedings: a complaint to the Ministry of Labour and Small Claims Court actions. They note that the Small Claims Court matters were settled and the applicant executed releases in favour of Hammond and Whitfield. These respondents submit the release language also bars the applicant from proceeding with the Application.

The parties have also filed several Requests for Order during Proceedings (RFOP), as follows:

• On April 14, 2011, the applicant filed a RFOP seeking to have Eric Newstadt (“Newstadt”), a former respondent against whom the Tribunal dismissed the Application, “maintained” as a respondent on the basis of discriminatory conduct that allegedly occurred several months after the Application was filed. The applicant also challenged the Tribunal’s decision to dismiss the Application against the Canadian Federation of Students (“CFS’). The applicant also sought to have Hakim Kassam (“Kassam”), an employee of the RSU, added as an individual respondent to the Application based on incidents alleged to have occurred on January 21, 2011. In this request the applicant also sought to “drop” her claims against the Continuing Education Students’ Association of Ryerson (“CESAR”) and Joel Duff;

• On May 30, 2011, the applicant filed a second RFOP seeking to have Newstadt reinstated as an individual respondent. Her submissions supporting this Request were identical to those made in the RFOP of April 14, 2011;

• On June 2, 2011, the applicant filed a second RFOP requesting that the Tribunal reinstate the CFS as an organizational respondent. The applicant again repeated her submissions from the RFOP of April 14, 2011 in support of this request;

• Also on June 2, 2011, the applicant filed a RFOP to seek a preliminary hearing for the Tribunal to consider whether it was appropriate for the respondents to disclose a document the applicant characterizes as privileged. The Tribunal’s decision in this regard will affect Small Claims Court actions commenced by the applicant.

• On June 16, 2011, the respondents filed a RFOP to seek “Confirmation from the Tribunal that documents obtained in the course of the current proceeding before the Tribunal are not to be used for any other purpose.” This request also relates to the civil actions commenced by the applicant, specifically whether she is entitled to use documents obtained in the course of this Application to further her claim in her Small Claims Court actions.

ANALYSIS AND DECISION

Individual Respondents

Canadian Federation of Students

4The CFS was the organizational respondent against whom the Tribunal dismissed the Application in its earlier Interim Decision in this matter, 2011 HRTO 202. The Tribunal dismissed the Application as against CFS because the applicant did not assert the CFS committed any specific acts of discrimination over which the Tribunal would have jurisdiction. In my view, the applicant’s request to reinstate CFS as a respondent also does not assert any specific acts of discrimination against the CFS. The applicant submitted that during her employment with the RSU she was by default “made a part of the CFS” and that much of her work involved CFS promotions and campaigns. She noted that she pay mandatory fees to the RSU, part of which is forwarded to the CFS. The applicant stated that she made numerous complaints regarding alleged discrimination because disability while employed at the RSU. She did not specify, however, to whom she made those complaints, in particular whether she directed them to anyone in the CFS. She also asserted that the CFS struck down the position of Disabilities Rep at the National Annual General Meeting of the CFS in November 2010. In my view, the applicant’s renewed submissions provide no reason to consider the CFS to be a proper respondent to this Application.

5The request to reinstate CFS as a respondent is also in effect a request for reconsideration. Rule 26.5 of the Tribunal’s Rules of Procedure states as follows:

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

The applicant’s submissions do not satisfy any of these criteria. In particular, the facts alleged in support of reconsideration preceded her submissions in response to the NOID and there is no reason to believe that the applicant was either unaware of them or that she could not have reasonably obtained them earlier. As noted, the facts asserted do not in any event provide a basis for the Tribunal to change its decision on this issue.

Eric Newstadt

6The applicant’s Request to reinstate Newstadt also seeks reconsideration of the Tribunal’s decision to dismiss the Application against him. The Request is based on facts that occurred on or about January 21, 2011 when Newstadt allegedly denied the applicant’s personal care attendant access to a RSU event. The alleged incident occurred well after the Application was filed; therefore, the Request is in effect a request to amend the Application and add a new respondent based on those allegations..

7The respondent’s submissions addressed the request in terms of the Tribunal’s approach to adding individual respondents and whether the applicant is barred from proceeding against Newstadt because the substance of the Application is before the Ontario Superior Court of Justice. They do not address whether, based on allegations about events following the filing of the Application, the applicant should be permitted to amend the Application to add those new allegations. In my view, the most fair, just and expeditious manner in which to deal with this issue is to hold a preliminary hearing to receive submissions from the parties.

Hakim Kassam

8The Application contains no allegations against Kassam. Rather, the incidents attributed to Kassam are alleged to have occurred starting on or about January 21, 2011, approximately eight months after the applicant filed the Application. Accordingly, although not identified as such, this Request is also effectively a request to amend the Application. In Boldt-Macpherson v. The Hoita Kokoro Centre, 2008 HRTO 16, the Tribunal described the criteria for evaluating a request to amend an application or add additional allegations, as follows:

a. Whether the additional allegations flow from or form part of the continuum of facts of the original complaint,

b. Whether the allegations provide a useful context for considering the legal issues in the case,

c. The reasons for raising the allegations at this date,

d. The quality of the evidence to support the additional allegations,

e. Whether the amendment would occasion actual prejudice to the respondents so that a fair hearing on the issues could not be held, and

f. The impact of the proposed amendment on the course of the hearing and the other parties.

The applicant alleges that Kassam informed her personal care attendant that he was banned from the premises where a RSU activity was held on January 21, 2011. Beyond that, the allegations against Kassam relate the manner in which he proposed to manage questions at the meeting, failure to provide an interpreter at an all candidates event and generally failing to preserve her human rights. In my view, these allegations, i.e., what appear to be the principal allegations against Kassam, do not flow from or form part of the continuum of facts of the original Application.

9This Application is already quite complex, involving multiple parties and diverse issues over a significant period of time. The matter is also procedurally complex and litigious. The applicant seeks to introduce entirely new facts and a new party to the Application well after it was filed, as opposed to, for example, amending her position regarding facts already in issue. Adding these factual allegations would make the Application more complex, necessarily drawing out the proceedings and making it more difficult to manage. The applicant’s relationship with some or all of the respondents is apparently ongoing and I do not believe that it is fair or appropriate to allow the applicant to indefinitely expand the scope of this Application with allegations unconnected to the original Application. The request to add Kassam as an individual respondent and add the allegations against him to the Application is therefore denied.

The Other Individual Respondents

10The respondents requested removal of the individual respondents and amendment to the style of cause accordingly. Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

11The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

12Hammond, Whitfield, Gilary Massa (“Massa”) and Sean Carson (“Carson”) are employees of the RSU. RSU is an organizational respondent to the Application and the allegations against these individual respondents arise in the context of their employment with RSU. There has been no suggestion that the organizational respondent is not responsible for their actions and the applicant did not challenge the RSU’s ability to remedy any Code violation. The applicant submitted that these individual respondents hold senior positions in the RSU and should be held personally responsible for their decisions and actions. In my view there is no compelling juridical reason to continue the Application against these individual respondents. The applicant notes that the actions of these individual respondents are at issue in the Application. I agree, but an organization can only work through its employees and in my view the allegations do not indicate that a remedy against any of these individual respondents will be required. Consequently, the Application is dismissed against Hammond, Whitfield, Massa, and Carson and the style of cause shall be amended accordingly.

13Chris McNeil (“McNeil”) is an employee of CESAR and the principles applied above regarding the respondents employed by the RSU would in my opinion normally apply to McNeil. The applicant, however, has indicated that she wishes to withdraw the Application as against CESAR, presumably on the assumption that McNeil would remain as an individual respondent. The applicant’s request to withdraw the Application against CESAR does not comply with the Tribunal’s Rules of Procedure (Rule 10 Withdrawal of an Application) and the respondents have not responded to it. In my view, the most fair, just and expeditious manner in which to determine the appropriate respondent to the allegations levelled at McNeil / CESAR is after providing the parties with an opportunity to make oral submissions on this issue.

14Joel Duff (“Duff”) was an employee of the CFS when the incidents attributed to him occurred. The applicant, however, seeks to withdraw the Application as against Duff, presumably on the assumption that the Tribunal would agree to reinstate the CFS as an organizational respondent, which I have declined to do. In these circumstances, I will provide the applicant with an opportunity to clarify whether she still seeks to withdraw the Application against Duff, and if she does, to receive oral submissions on this issue at the preliminary hearing.

Rule 3.3 and the Small Claims Courts Actions

15The applicant’s RFOP of June 2, 2011 and the respondent’s of June 16, 2011 arise out of Small Claims Court actions the applicant brought against Hammond and Whitfield. The parties settled both actions out of court and the applicant executed releases in favour of Hammond and Whitfield, respectively. The respondents take the position that the Small Claims Court actions dealt with subject matter of this Application and that releases executed by the applicant in respect of these actions bar her from proceeding with this Application. The respondents therefore produced the Statements of Claims, minutes of settlement and releases regarding the actions, as the Tribunal requires.

16The appendices to the Statements of Claim contain copies of correspondence that the respondents were required to destroy pursuant to the minutes of settlement. The applicant took the position that the failure to destroy the documents in question (which formed part of the Statements of Claim) was a breach of the minutes of settlement. She therefore commenced new Small Claims actions against Hammond and Whitfield (the “contravention claims”) asserting breach of contract. Frank Nyitray (“Nyitray”) and Jesse Trautman (“Trautman) had also brought and settled Small Claims actions against Hammond and Whitfield and also brought contravention claims against them. The respondents produced these contravention claims and the plaintiffs state explicitly that they are based on the documents produced by the respondents in support of their Responses to this Application, i.e., the applicant shared the documents with Nyitray and Trautman.

17On June 2, 2011, Hammond and Whitfield brought a motion before the Small Claims Court to strike out the contravention actions because the applicant and the other plaintiffs used documents obtained in the course of the Application for another purpose, in breach of Rule 3.3 of the Tribunal’s Rules of Procedure. Deputy Judge Ashby of the Small Claims Court stayed the contravention actions until the Tribunal decides whether the documents in issue may be used outside the scope of those proceedings. The applicant’s and respondents’ Requests and associated Responses to the Requests (filed on July 18, 2011 and June 16, 2011, respectively) on this issue seek direction regarding whether the respondents were entitled to rely on the original Statements of Claim, minutes of settlement and releases in their Responses and whether the applicant was entitled to use documents produced by the respondents as the foundation for her contravention claims and to share them with Nyitray and Trautman.

18Both parties seek a preliminary hearing to deal with this matter, but I do not believe a hearing is necessary in the circumstances. The applicant filed extensive submissions wherein she argued that the various Small Claims actions are irrelevant to the Application and that therefore the respondents were not required to disclose the Statements of Claim or settlement documents. She further argued that the minutes of settlement are privileged, confidential and subject to the confidentiality requirements under the Small Claims Court’s Mandatory Mediation provisions. The respondents submitted that the Tribunal’s practices required production of the documents in question, which are neither confidential in respect of Hammond and Whitfield (since the confidentiality requirements bind only the Applicant) nor privileged.

19I do not agree with the applicant’s argument that the Small Claims actions are irrelevant to the Application. The respondents here assert that the substance of the Application has been appropriately dealt with through another proceeding, and request dismissal on that basis. The Statements of Claim and settlement documents are clearly relevant to the determination of the respondent’s request. When a respondent asserts that another proceeding has dealt with the subject matter of an application, the Tribunal’s Response form (Form 2) directs the respondent to produce the document originating that proceeding and a copy of the decision or settlement concluding the proceeding. Similarly, when a respondent relies on a release, the Tribunal requires the respondent to produce the release along with the Response. A release protects the releasee by barring further claims based on the same subject matter. This protection would be negated if a release could not be disclosed in a legal proceeding because it was confidential or privileged.

20Based on her own representations, the applicant is clearly in breach of Rule 3.3 of the Tribunal’s Rules, which states as follows:

3.3 Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

The applicant’s contravention claims explicitly state that she became aware of the continued existence of the correspondence subject to destruction through the respondents’ production of her original Statements of Claim (of which the correspondence formed a part) in response to her Application. The applicant then commenced her contravention actions based on this revelation. It is also clear that the applicant shared the respondents’ documents with Nyitray and Trautman who filed their own contravention claims as a result (which refer specifically to the documents produced by the respondents in this proceeding). Consequently, the applicant has used documents obtained under the Tribunal’s Rules for purposes not related to the proceedings before the Tribunal and is in breach of Rule 3.3. This is precisely the situation Rule 3.3 is intended to prevent. Documents obtained in the course of the Application may only be used in the course of this proceeding and may not be used for any other purpose or disclosed to third parties.

21In addition to reminding the applicant of her obligation to comply with Rule 3.3, the respondents requested a declaration that any claims commenced by the applicant or others based on documents used in breach of Rule 3.3 amount to a breach of process. I do not think it is for the Tribunal to pronounce on proceedings in other fora. However, I do think it is appropriate to note that the applicant’s breaches of Rule 3.3 do amount to an abuse of the Tribunal’s processes and the applicant should be aware that any further abuse of process may result in sanctions, which may include dismissal of the Application.

The Respondents’ Preliminary Objections

22As noted, the respondents requested early dismissal of the Application because the applicant has made a claim based on the same facts in civil court and another proceeding has dealt with the substance of the Application, pursuant to sections 34(11) and 45.1 of the Code, respectively. The respondents assert that the releases the applicant executed in favour of Hammond and Whitfield bar the applicant from proceeding with this Application. The respondents also request deferral of the Application because the subject matter of the Application is in issue in other proceedings that are still in progress, pursuant to section 45 of the Code. The respondents also submit that the incidents alleged to have occurred prior to April 26, 2009 are untimely, pursuant to section 34(1). In my view, a preliminary hearing is the most fair, just and expeditious manner to address these issues.

ORDER

23The Tribunal orders as follows:

1. Within two weeks of this Interim Decision, the applicant must advise the other parties and the Tribunal whether she still seeks to withdraw the Application against Joel Duff;

2. The request to “reinstate” the CFS as a respondent is denied;

3. The request to add Kassam as an individual respondent is denied;

4. The Application is dismissed as against Hammond, Whitfield, Massa and Carson and the style of cause shall be amended accordingly;

5. The respondents were entitled and required to disclose with their Responses the Statements of Claim in the applicant’s Small Claims Court actions against Hammond and Whitfield;

6. The applicant’s use of the respondents’ disclosure to the Tribunal of the Small Claims Court Statements of Claim (and appended documents) against Hammond and Whitfield to commence other litigation, and the sharing of it with third parties was in breach of Rule 3.3 of the Tribunal’s Rules of Procedure; and,

7. The Registrar will schedule a one-day preliminary hearing in person. The respondents shall proceed first regarding whether and to what extent sections 34(11), 45 and 45.1 are engaged by this Application and whether the releases executed by the applicant bar her from proceeding with this Application. The parties should also be prepared to make submissions regarding whether the releases render the Application an abuse of process. The applicant shall proceed first regarding the timeliness issue and the parties should be prepared to address whether the delay was incurred in good faith and, if so, whether the delay results in substantial prejudice to the respondents. The applicant shall proceed first regarding whether she should be permitted to amend the Application to add new allegations against Newstadt and, if so, whether Newstadt should be added as an individual respondent on the basis of these allegations. The parties, commencing with the applicant, shall then make submissions regarding whether McNeil, CESAR and Duff should continue to be respondents in this Application.

24A Notice of Preliminary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the hearing.